1. Whether the lower courts' decisions violated the public's common law right of access to judicial records by refusing to grant members of the public access to a videotaped deposition containing the witness testimony of the President of the United States in a criminal trial, which was taken pursuant to Rule 15 of the Federal Rules of Criminal Procedure, played to the jury in open court, and remains in the custody of the federal trial court?

2. Whether the lower courts' decisions violated the Petitioner's First Amendment rights by basing their refusal to allow Petitioner access to a videotaped deposition constituting a judicial record on the ground that the judicial record might be used to undermine the political popularity of the deponent, the President of the United States?

3. Whether the First Amendment entitles members of the public to receive post-trial access to videotaped deposition testimony, where the public had been barred from attending the court session and the witness' testimony was videotaped for use as a substitute for live testimony at trial?

4. Whether a nonprofit citizens advocacy group, that seeks, for its own use, a copy of the videotaped deposition of the President of the United States as a witness in a criminal trial, has standing to petition the courts for a copy of the videotape?

Parties Below

The Petitioner, Citizens United, was an Interested Party/Appellant in the court of appeals. Citizens United is a citizens advocacy group organized as a nonprofit social welfare organization, incorporated under the laws of the Commonwealth of Virginia; it does not have any parent companies or subsidiaries.

Respondent, United States of America, was the Plaintiff/Appellee in the court of appeals.

Respondent, William Jefferson Clinton, President of the United States, was an Interested Party/Appellee in the court of appeals.

Respondents, Reporters Committee for Freedom the Press, Radio-Television News Directors Association, Capitol Cities/American Broadcasting Companies, Cable News Network, Inc., National Broadcasting Company, Inc. and CBS, Inc., were Movants/Appellants in the court of appeals in a related, but separate, case that was heard and decided together with Citizens United's appeal.

Respondents, James B. McDougal, Jim Guy Tucker and Susan McDougal, were Defendants/Appellees in the court of appeals. None of these individuals participated actively in the proceedings before the court of appeals.

Respondent, Dow Jones Company, Inc., was a Movant/Appellee in the district court. It did not participate actively in the proceedings before the court of appeals.

TABLE OF CONTENTS

Questions Presented

Parties Below

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Common Law Provisions at Issue

Statement of the Case

President Clinton's Videotaped Deposition

Proceedings Before and Decision of the District Court

Proceedings Before and Decision of the Court of Appeals

Reasons for Granting the Writ

The Decisions Below Undermine Important First Amendment Principles Protecting Speech and Political Debate

The Decisions Below Erroneously Deny the Public Access to a Judicial Record -- A Question on which the Federal Circuits Are in Conflict

The Eighth Circuit Erroneously held that a Videotaped Deposition Is Not a Judicial Record

The Eighth Circuit Incorrectly Determined that There is only a Weak Presumption Favoring Public Access to Judicial Records

The Eighth Circuit Improperly Considered Potential "Political Use" of the Videotape in Denying Public Access

The Eighth Circuit's Rulings Would Undermine the Public's First Amendment Right to Attend Judicial Proceedings

The Lower Courts Incorrectly Denied the Public Standing To Sue for Access to Judicial Records

Citizens United respectfully petitions for a writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

Opinions Below

The opinion and judgment of the United States Court of Appeals for the Eighth Circuit (App. 1a-19a) are officially reported at 103 F.3d 651 (8th Cir. 1996). The opinion and judgment of the United States District Court for the Eastern District of Arkansas (App. 24a-34a) are officially reported at 940 F.Supp. 224 (E.D. Ark. 1996).

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1254(1). The opinion and judgment of the court of appeals (App. 1a-19a) were entered on December 20, 1996, and a timely petition for rehearing was denied by order dated February 10, 1997 (App. 35a). This petition is timely filed within 90 days after the denial of the petition for rehearing.

Constitutional and Common Law

Provisions at Issue

The following Constitutional and regulatory provisions are at issue in this case:

The First Amendment to the United States Constitution, which provides as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The public's common law right of access to judicial proceedings and records, which was defined by this Court in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978), as follows:

[A] general right to inspect and copy public records and documents, including judicial records and documents.

Statement of the Case

President Clinton's Videotaped Deposition.

Defendants James B. McDougal, Susan McDougal and Jim Guy Tucker were indicted, tried and convicted of criminal wrongdoing in connection with various financial transactions involving Madison Guaranty Savings & Loan Association and Capital Management Services, Inc., a business investment company licensed by the Small Business Administration. The trial was related to the Whitewater inquiry that is currently being investigated by Independent Counsel Kenneth Starr. The President and Mrs. Clinton are former business partners of the McDougals in the Whitewater Development Company.

During the course of the trial, defendants James McDougal and Susan McDougal subpoenaed President Clinton as a fact witness in their behalf. (App. 25a, 38a.) On March 20, 1996, the trial court denied the McDougals' motion to compel the personal appearance of the President, granting instead the President's request that his testimony be taken by court-supervised videotaped deposition pursuant to Rule 15 of the Federal Rules of Criminal Procedure. (App. 38a-42a.)

On April 2, 1996, the trial court entered an order, which, inter alia, prohibited the public from attending the videotaping of President Clinton's testimony. (App. 43a.)

On April 24, 1996, the trial court ordered that the videotaped testimony of President Clinton be sealed and that the parties submit briefs within thirty days regarding the handling and release of the videotape after it was presented to the jury. (App. 44a.) The court also "invited any representatives of the news media to file an amicus curiae brief with the Court on or before May 24, 1996." (App. 26a.)

President Clinton's deposition was taken on April 28, 1996, at the White House, with the trial court presiding via a two-way satellite hookup. (Id.)

On May 9, 1996, an edited version of the President's videotaped testimony was presented to the jury in open court. (App. 27a.) Thereafter, the trial court ordered the release of the transcript of that portion of Mr. Clinton's testimony that was presented to the jury. The actual videotape containing the President's testimony, however, was not released and remains in the custody of the court, under seal. (See App. 44a.)

II. Proceedings Before And Decision Of The District Court

On May 3, 1996, the Reporters Committee for Freedom of the Press and several news media organizations (hereinafter referred to collectively as "Reporters Committee") filed an application with the trial court seeking immediate access to a copy of the videotape containing the President's deposition testimony. The court denied the motion for immediate access, but delayed a final decision on whether to release the videotape until after it had been presented to the jury. The news media organizations appealed this interim decision to the Eighth Circuit Court of Appeals, which, on May 17, 1996, dismissed the appeal for lack of jurisdiction. (App. 27a fn. 4.)

On May 13, 1996, Citizens United, the Petitioner herein, filed an application with the trial court seeking a copy of the unedited version of President Clinton's videotaped testimony for its own use.(1) (App. 45a-48a.) Citizens United requested that the tape be released once the jury rendered its verdict.

On or about May 24, 1996, Dow Jones & Company, Inc., which publishes the Wall Street Journal, filed a petition to intervene, together with an application for access to the "unedited videotape" and the transcript of Mr. Clinton's deposition. (App. 28a.)

On June 11, 1996, the trial court entered an order denying the applications of Citizens United, the Reporters Committee and Dow Jones, insofar as each applicant sought a copy of the videotape. The court granted Dow Jones' request for a copy of the full transcript of Mr. Clinton's deposition. (App. 24a-34a.)

The court further held, sua sponte, that Citizens United did not have standing to petition the court for access to the videotape because "Citizen United [sic] is not a party to this action and is not a news media organization." (App. 26a fn. 2.)

In addressing the merits of the various applications, the trial court assumed that the videotape was a "judicial record," (App. 30a), but held that neither the First Amendment nor the public's common law right of access to judicial records justified release of the videotape. (App. 30a-31a.)

In its decision, the trial court recognized that the public and press have a "strong interest...in access to judicial proceedings and in obtaining important information." (App. 31a.) The trial court also found that there was little likelihood that release of the videotape would be prejudicial to the fair trial rights of any of the defendants, including Jim Guy Tucker, who faces trial on a second indictment. (App. 33a fn. 10.)

Despite this strong foundation for releasing the videotape, the court refused to do so on four interrelated grounds.

First, the court found that the media and public had already been accorded "substantial access" to the trial because, "the press has attended the trial, reported the events of the trial to the public, and had a transcript of the videotaped deposition available to it." (App. 31a.)

Second, the court said that it would be inappropriate to treat the videotaped testimony of the President "differently from that of any other witness." (App. 31a-32a.) On this point, the court said that Rule 53 of the Federal Rules of Criminal Procedure would have prohibited photographing or broadcasting the President's testimony had he testified live at trial, and that allowing public access to President Clinton's videotape would "contravene the Court's concern with accommodating the interests of the Presidency and might impede any future attempts to tailor an arrangement for obtaining a President's testimony while minimizing the intrusion on his duties." (App. 32a.)

Third, the court said that the case before it involved "unique circumstances" and that other courts faced with the issue of public access to Presidential testimony have refused to release the videotaped testimony. (Id.)

Fourth, and most significantly, the court concluded there was "potential for misuse of the tape," by persons other than the news media. (Id.) This conclusion was based on the arguments by the Government(2) that concern over possible "commercial and political exploitation" by the President's political opponents "strongly militates against" releasing the videotape.(3) (App. 51a.)

III. Proceedings Before and Decision of The

Court of Appeals

Citizens United filed a timely notice of appeal of the district court's decision denying it access to the President's videotaped deposition,(4) and its appeal (Case No. 96-2671) was consolidated with the appeal of the Reporters Committee (Case. No. 96-2606) for purposes of oral argument. Dow Jones did not appeal the decision of the trial court, nor did any of the defendants in the underlying criminal trial.

The court of appeals granted the Reporters Committee's motion for expedited consideration of the appeal and directed Citizens United to address the issue of standing in its brief. The court also authorized Citizens United to address the merits of the trial court's decision if it desired to do so. (App. 36a-37a.) Citizens United addressed both the standing issue and the merits of the case in its brief and at oral argument.

On appeal, President Clinton and the Government reiterated their contentions that it was appropriate for the trial court to weigh the impact that release of the tape might have on President Clinton politically. Indeed, the Justice Department noted that "Citizens United itself appended to its district court brief the contents of a newspaper article quoting its chairman, Floyd G. Brown, as stating that the videotape is 'legitimate for campaign use.'" (App. 60a.)

President Clinton, in his personal capacity, argued that "[t]he district court was properly concerned with the danger of misuse of the tape.... [P]rior to the district court's decision there had been considerable publicity about the likelihood that portions of the videotape might be used in partisan 'attack ads.'" (App. 63a-64a.)

Following oral argument, the court of appeals affirmed the district court's denial of access.(5) The court held that: (1) as a matter of law, the videotape of the President's testimony "is not a judicial record to which the common law right of public access attaches" (App. 12a), and (2) the public does not have a First Amendment right to the videotape itself, because the public had access to the information contained in the videotape. (App. 18a.)

In holding that the videotaped deposition of President Clinton's testimony is not a judicial record, the Eighth Circuit (App. 13a-15a) rejected the holding of the Second Circuit that a videotaped deposition, which is taken and used as a substitute for live trial testimony in a criminal trial, is a judicial record. See Application of CBS, 828 F.2d 958 (2d Cir. 1987) (absent extraordinary circumstances, the public has a common law right to inspect and copy the videotape of depositions used at trial where the witness is unable to provide live testimony).

The Eighth Circuit further opined that even if the videotape were a judicial record, the trial court did not abuse its discretion in denying access to it, because the Eighth Circuit takes a deferential view toward a trial court's "consideration of competing values" in determining what records to make available to the public. (App. 14a-15a.)

In evaluating the factors weighed by the trial court, the Eighth Circuit acknowledged that there is a "presumption in favor of public access to judicial records"(6) (App. 14a), but it embraced each of the four factors articulated by the trial court, including the trial court's conclusion that there was a potential for "misuse" of the tape. (App. 15a-16a.)

In addition to the four factors considered by the trial court, the Eighth Circuit added three more considerations, which it said further supported the district court's decision not to release the videotape. Those reasons were: (1) concern over commercial or private use of the videotape; (2) the need to "preserv[e] the availability of material testimony in a criminal case"; and (3) "a strong judicial tradition of proscribing public access to recordings of testimony given by a sitting President." (App. 16a-17a.)

Finally, having disposed of the case on the merits, the court of appeals declined to address the issue of whether Citizens United has standing to petition the courts for access to the videotape. (App. 19a.)

Citizens United filed a timely petition for rehearing with a suggestion for rehearing en banc. On February 10, 1997, the court of appeals denied both the petition for rehearing and suggestion for rehearing en banc. Two members of the court, voted, however, to grant Citizens United's suggestion for rehearing en banc, and three members of the court, without explanation, recused themselves from consideration of the petition. (App. 35a.)

Reasons for Granting the Writ

This case presents an issue of profound Constitutional importance, involving the denial of fundamental First Amendment rights, and presenting issues of law on which there is a division of authority among the federal circuit courts of appeal. The central Constitutional issue is whether the public can be forever denied access to a videotaped deposition containing criminal trial testimony of the President of the United States, where a principal reason for denying access is the Government's claim that the videotape might be used by the President's political opponents to undermine his popularity. This Court also should grant the writ to resolve the conflict among the circuits as to whether a videotaped deposition, used in a criminal trial as a substitute for live witness testimony, is a judicial record, and whether the trial court may Constitutionally deny public access to that record in the absence of legitimate and compelling reasons (such as danger to national security).

The Decisions Below Undermine Important First Amendment Principles Protecting Speech and Political Debate

Nearly twenty years ago, in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), this Court was confronted with some of the same issues raised in this petition for writ of certiorari. In Nixon, this Court faced the task of determining the factors to be considered (and the weight due each factor) in deciding whether certain audio recordings used in court proceedings should be immediately released to the public. These audio recordings had been made by President Nixon and admitted into evidence in the Watergate trials of several of his top aides. The issue was not resolved, however, because of the Congressional enactment of the Presidential Recordings Act, providing an administrative procedure for processing and releasing the tapes to the public. Nixon, supra, 435 U.S. at 602-06.

This petition for a writ of certiorari presents the Court with the question left unanswered in Nixon. Here, no administrative process exists to provide access to the videotape of President Clinton's testimony. Unless the decision of the court of appeals is reversed, the public will be forever barred from gaining access to the videotape, because the tape has been ordered held under seal in perpetuity.

The decision to deny the public access to the videotape, and the legal basis for that decision, are of profound Constitutional importance. The decisions of the trial court and court of appeals, if allowed to stand, will work to undermine the bedrock First Amendment principle that government may not proscribe or interfere with peaceful political speech (here, by preventing access to a judicial record generated by a court while in session) simply because government officials believe that they would disagree with the political message Citizens United seeks to convey.

A principal reason cited by both the trial court and court of appeals for denying public access to the videotape was the contention by the Government and President Clinton that Citizens United would use the videotape to undermine President Clinton's popularity during the 1996 Presidential campaign.(7)

Reliance on this factor is wholly at odds with this Court's recognition that "the First Amendment reflects a 'profound national commitment' to the principle that 'debate on public issues should be uninhibited, robust, and wide-open.'" Boos v. Barry, 485 U.S. 312, 318 (1988) (citations omitted). As this Court stated in Hustler Magazine v. Falwell, "one of the prerogatives of American citizenship is the right to criticize public men and measures.... The candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul!' when an opponent or an industrious reporter attempts to demonstrate the contrary," 485 U.S. 46, 51 (1988) (internal quotation marks and citations omitted).

If allowed to stand, the trial court and appellate court decisions, denying public access to President Clinton's videotaped testimony, will effectively undercut this Court's established and profound commitment to uninhibited, robust, and wide-open debate on important political and public policy matters.

The Decisions Below Erroneously Deny the Public Access to a Judicial Record -- A Question on which the Federal Circuits Are in Conflict

The Eighth Circuit Erroneously held that a Videotaped Deposition Is Not a Judicial Record

Prior to the Eighth Circuit's decision in this case, no federal appellate court had held that a videotaped deposition taken pursuant to Rule 15 of the Federal Rules of Criminal Procedure and used as a substitute for live testimony in a criminal trial is not a judicial record. In fact, the contrary has been held. The Second Circuit specifically recognized such videotapes as judicial records, and concluded that Rule 53 of the Federal Rules of Criminal Procedure in no way countermands this determination. See Application of CBS, Inc., 828 F.2d 958 (2d Cir. 1987). In explaining its holding, the Second Circuit stated:

The analogy between a videotaped deposition introduced in evidence and live testimony does not withstand scrutiny. Whatever disruptive effects the physical presence of cameras and recording equipment may be thought to have on trials, the copying and rebroadcast of a videotaped exhibit can have no such effect. The need for judicial oversight of cameramen or other technicians is minimal; there is no danger of the jury being exposed to inadmissible evidence or argument; and depositions are taken in private.

Id. at 959.

Likewise, in In Re National Broadcasting Co., 653 F.2d 609 (D.C. Cir. 1981), the D.C. Circuit stated that "although the [common law] right [to inspect and copy judicial records] was first recognized at a time when records were documentary in nature, it is now settled that the right extends to records which are not in written form, such as audio and video tapes." Id. at 612.

The Third and Seventh Circuits have also taken a similarly reasoned view of what constitutes a judicial record. See Smith v. United States District Court, 956 F.2d 647, 650 (7th Cir. 1992); United States v. Martin, 746 F.2d 964, 968 (3rd Cir. 1984). Indeed, the Seventh Circuit has stated that such records encompass "everything in the record, including items not admitted in evidence." Smith, 956 F.2d at 650. See alsoUnited States v. Guzzino, 766 F.2d 302, 304 (7th Cir. 1985) (the right of access includes the right of the media to copy audio or video tapes which have been admitted into evidence in a criminal trial).

Thus, the Eighth Circuit's decision is at variance with the views of each of the federal courts of appeal that has addressed the issue of what constitutes a judicial record.

The Eighth Circuit Incorrectly Determined that There is only a Weak Presumption Favoring Public Access to Judicial Records

In contrast to the opinion of the Eighth Circuit, the Second, Third, Seventh and District of Columbia Circuits have each held that there is a "strong presumption" favoring access to judicial records. United States v. Guzzino, 766 F.2d 302, 304 (7th Cir. 1985); In Re National Broadcasting Co., Inc., 653 F.2d 609, 613 (D.C. Cir. 1981); United States v. Criden, 648 F.2d 814, 823 (3rd Cir. 1981); Application of National Broadcasting Co., 635 F.2d 945, 952 (2d Cir. 1980).

The Second Circuit has stated that "the presumption in favor of the public right to inspect and copy judicial records [is] so strong that only the 'most extraordinary circumstances' or the 'most compelling circumstances' would justify restricting that right '[w]hen physical evidence is in a form that permits inspection and copying without any significant risk of impairing the integrity of the evidence or interfering with the orderly conduct of trial.'" Application of CBS, 828 F.2d 958, 960 (2d Cir. 1987) (quoting Application ofNational Broadcasting Company, 635 F.2d 945, 952 (2d Cir. 1980)).

While the Eighth Circuit pays lip service to a presumption in favor of releasing judicial records, it treats the presumption as quite weak and easily overcome. It stands alone in allowing the trial court virtually unfettered discretion to determine what factors to consider and the weight to be accorded each.(8)

But, as the pending case demonstrates, the purported presumption accorded public access by the Eighth Circuit is virtually meaningless. For example, the appellate court here suggests that the trial court could have denied access based on mere speculation that the records might be used for commercial purposes (App. 16a-17a). If the mere possibility of future commercial use provides a legitimate basis for denying access, every record pertaining to every court proceeding in the nation would be subject to permanent seal, since there is no guarantee that any given court record would never be used for any commercial purpose.

The same defect in the Eighth Circuit's rationale exists with respect to the "private pursuit" theory on which it relied (App. 16a-17a). Hypothesis and conjecture such as that employed by the Eighth Circuit could never overcome a true legal presumption. Thus, the presumption in favor of public access that the Eighth Circuit pretended to observe was so weak in reality that it did not actually constitute a presumption at all.

The Eighth Circuit Improperly Considered Potential "Political Use" of the Videotape in Denying Public Access

Even where a court may properly exercise its discretion to withhold access to a judicial record, the motivation for its action must be a permissible one. Where courts have denied the public access to taped materials, whether the tapes be audio or video, denial has been consistently based on considerations such as: (A) prejudice to the defendant's fair trial rights, e.g.,United States v. Webbe, 791 F.2d 103 (8th Cir. 1986) (affirming the trial court's conclusion that the defendant's Sixth Amendment right to a fair trial outweighs the media's common-law right of access to audio tapes admitted into evidence in a criminal trial); (B) harm to innocent third parties, e.g., Application of KSTP Television, 504 F.Supp. 360 (D. Minn. 1980) (application of a television station for a copy of videotapes made by a convicted kidnapper, which recorded the defendant's "repeated sexual rapes" of one of his victims, denied on grounds that the innocent victim's right to privacy outweighs media's right of access); or (C) concerns over the release of sensitive national security information, e.g., In Re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) (recognizing national security concerns as a legitimate factor to consider in determining whether to release the transcript of a plea hearing in connection with espionage charges); United States v. Poindexter, 732 F.Supp. 165 (D.D.C. 1990) (media denied immediate access to unedited copy of videotaped deposition of former President Ronald Reagan in trial of former national security advisor because classified information was likely to be disclosed during the testimony). None of these factors are present in the pending case.(9)

The overriding reason for denying access to the videotape in this case was speculation that the President's political opponents would "misuse" the videotape, by using it to make political commercials or otherwise employing it to oppose President Clinton's re-election effort. (App. 16a, 32a-33a.)

Petitioner is aware of no other case in which a federal appeals court has upheld the denial of access to a judicial record where the denial was predicated upon concern over the possible use of the record in political speech.

To the contrary, the D.C. Circuit has expressly rejected consideration of such a concern as a basis for nondisclosure. Indeed, the D.C. Circuit rejected former Congressman John Jenrette's contention that news media access to audio tapes used by the prosecution in his trial on charges stemming from the ABSCAM scandal should be denied because his political opponents would use the tapes against him. In Re National Broadcasting Co., 653 F.2d 609 (D.C. Cir. 1981). In reversing the trial court's refusal to release the tapes, the D.C. Circuit explained that:

under these circumstances, Jenrette's concern for his reputation and any embarrassment which may flow from the additional disclosure of the tapes is entitled to little weight, for the embarrassment anticipated is largely that which results whenever misconduct or questionable conduct is exposed.

Id. at 619 (internal quotation marks omitted).

The Eighth Circuit's opinion in the pending case also conflicts with the Seventh Circuit's decision in United States v. Guzzino, 766 F.2d 302 (7th Cir. 1985), where the court held that factors including whether the news media would accurately report the contents of the tapes, or whether the public would understand the tapes, should play no role in the trial court's determination of whether to release taped materials. According to the Seventh Circuit, the trial court's "sole concern" should be "with the constitutional rights of the defendants," and if the judge determines that the defendants will suffer no prejudice from release of the tape, the tape must be released. Id. at 304.(10)

The Eighth Circuit's Rulings Would Undermine the Public's First Amendment Right to Attend Judicial Proceedings

The pending matter also presents the Court with an opportunity to resolve confusion over whether the public has a First Amendment right of access to videotaped testimony, where the public was denied access to the federal court proceeding in which the testimony was taped.

This Court has long recognized that members of the public have a First Amendment right to be present during a criminal trial. Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). This right extends beyond the mere presentation of evidence to the jury. Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). The only exceptions occur where the Government has demonstrated "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Id. at 510.

Moreover, the public's right to attend such proceedings is not satisfied by merely making a transcript of the proceedings available after the fact. As Justice Brennan pointed out in his concurring opinion in Richmond Newspapers, supra, "the availability of a trial transcript is no substitute for a public presence at the trial itself. As any experienced appellate judge can attest, the 'cold' record is a very imperfect reproduction of events that transpire in the courtroom." 448 U.S. at 597 n. 22.

In the pending case, however, the Eighth Circuit took the opposite view and held that the public has no First Amendment right of access to the videotape of the President's testimony, because the videotape is not a judicial record and the public had access to the trial itself. Neither the trial court, nor the court of appeals, addressed Petitioner's contention that access is required to vindicate the public's First Amendment right to have attended the actual taping of President Clinton's testimony, which was presided over by the trial court.

As recognized by the U.S. District Court for the District of Columbia (but implicitly rejected by the Eighth Circuit in the pending case), the public's First Amendment right to attend judicial proceedings extends to the videotaping of a witness' testimony, certainly where the trial court presides over the taping. SeeUnited States v. Poindexter ("Poindexter I"), 732 F.Supp. 165, 167 (D.D.C. 1990).

In Poindexter I, however, the trial court prohibited the public from attending the taping of former President Ronald Reagan's testimony because it involved matters of national security. 732 F.Supp at 166. To vindicate the public's right of access, the court ordered "the release of the tape to the public and the press as soon as the editing [of the tape] has been completed." Id. at 170. Later, to avoid prejudicing the defendant's right to a fair trial, the court expressed its intent to delay actual release of the videotape for copying until after it was played to the jury at trial. United States v. Poindexter ("Poindexter II"), 732 F.Supp. 170, 172 n.2 (D.D.C. 1990).

This Court should adopt a similar policy with respect to President Clinton's testimony. Here, the grounds for refusing to allow the public to attend the taping of President Clinton's testimony are far weaker than they were with respect to former President Reagan's testimony. In the pending case, the trial court recognized that there was no danger whatsoever that national security secrets would be compromised by allowing the public to attend the taping. (App. 41a). Nor was concern for the President's safety a valid basis for keeping the public at bay. The trial court presided over the taping via a two-way satellite hook-up between the White House and the courthouse in Little Rock, Arkansas. There is no valid safety reason why the public could not have been allowed to observe the proceedings in the courtroom in Little Rock to view the President's testimony as it was being taped. Finally, even if potential prejudice to the defendants' fair trial rights presented a compelling reason for denying the public access to the testimony at the time of the videotaping, the trial court has concluded that no such justification currently exists for denying the public access to President Clinton's videotaped testimony.

As explained above, the primary reason the videotape remains under permanent seal is to keep it out of the hands of the President's political opponents. The government cannot credibly contend that keeping the tape under permanent seal is a narrowly tailored solution aimed at furthering a legitimate and compelling government interest.

The Lower Courts Incorrectly Denied The Public Standing To Sue for Access to Judicial Records

Although sidestepped by the court of appeals, the trial court's holding that Citizens United lacks standing to petition the court for access to the videotape bearing President Clinton's criminal trial testimony is clearly wrong and ought not be allowed to stand.(11)

As stated by this Court in Nixon v. Warner Communi-cations, Inc., 435 U.S. 589, 610 (1978), individual members of the public are on an equal footing with the press in seeking access to court proceedings and records. This proposition is so well engraved in our nation's jurisprudence that none of the parties to this action filed briefs opposing Citizens United's contention that it has standing to sue. Indeed, even the Department of Justice, which vigorously defended the trial court's decision on the merits, acknowledged in its brief before the court of appeals that the trial court's holding on the issue of standing was wrong. (App. 59a fn. 8.)

This Court should grant the writ on the question of standing as well in the interest of judicial economy and to provide Citizens United with complete relief in the event the Court reverses the court of appeals on the merits of the case.

Conclusion

The primary issue presented in this case is the public's right to judicial records, which always have been and must continue to be public information -- especially when they concern the nation's highest elected official. The Government of the United States, President Clinton, the trial court and the Eighth Circuit Court of Appeals each has stated that the President's desire to win re-election and be protected from criticism before the American public outweighs the public's right to see and hear his testimony in a criminal trial involving his former business partners and immediate successor as Governor of Arkansas, despite the long-standing principle favoring robust public debate on political matters.

Until the Eighth Circuit's ruling in the pending matter, every federal appellate court that had considered the issue of public access to judicial records, where the conduct of a high ranking government official is at issue, concluded that: (1) adverse political publicity resulting from the release of such records is not a valid basis for denying access; and (2) absent a compelling reason to the contrary, such records should be released so that the public can see, hear and evaluate first-hand the actions of such officials.

In contrast, the Eighth Circuit has slammed the courthouse door in the public's face by affirming the trial court's decision to permanently seal the videotape bearing the President's testimony from public purview.

This Court should not allow this case to stand as a precedent against the public's right to access. It should grant the petition for writ of certiorari in order to resolve the split of authority in the federal circuits over this profoundly important Constitutional issue, because the right of the American people to see, hear and evaluate the testimony of the President of the United States should not depend on the particular judicial circuit in which the underlying trial takes place. The rule regarding access to such testimony should be uniform throughout the nation, and it should afford the public broad access to such records.

For the reasons stated herein, the petition for a writ of certiorari should be granted.

Respectfully Submitted,

William J. Olson*

John S. Miles

Alan Woll

William J. Olson, P.C.

Suite 1070

8180 Greensboro Drive

McLean, VA 22102

(703) 356-5070

Michael Boos

Citizens United

11094-D Lee Highway #200

Fairfax, VA 22030

(703) 352-4788

Donald C. Donner

Michael R. Shahan

Donner & Shahan, P.A.

200 W. Center Street

Fayetteville, AR 72701

(501) 442-2946

Attorneys for Petitioner

*Counsel of Record

May 9, 1997

1. The trial court had jurisdiction over Citizens United's application pursuant to 28 U.S.C. § 1331. SeeNational Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 845, 850 (1985) (district courts have jurisdiction under 28 U.S.C. § 1331 over claims based on federal common law; it is not necessary to have a claim based on a federal statute or provision of the Constitution). SeealsoNixon v. Warner CommunicationsInc., 435 U.S. 589, 597-98 (1978) (recognizing that members of the public have a common law right to petition the courts for a writ compelling access to public records).

2. Although the United States was a party to the underlying criminal cases, the U.S. Department of Justice claimed to represent the President in his official capacity. (App. 49a-51a and 55a-61a.)

3. A May 24, 1996 "Memorandum of the President in his Personal Capacity in Support of Motion for Protective Order" argued that the district court should withhold the tape, inter alia, for political reasons, as follows:

[I]f applicants and others are permitted to copy and disseminate the videotape, the President's testimony will inevitably be distorted and used for improper purposes.

The President's political opponents have already declared their intention to use portions of this videotape (necessarily taken out of context) in political "attack ads." If the tape were released, there would of course be no "safeguard, other than the taste of the marketing medium against distortion through cutting, erasing, and splicing of tapes." Moreover, if this tape is released to the public, there is a strong likelihood that it (or portions of it) will be used in the marketplace for the [sic] commercial gain, whether by the applicants or others.

* * * *

In sum, if the President's videotaped testimony is released for copying, it will be distorted for partisan purposes and exploited for commercial gain.

(App. 53a (footnotes and internal citations omitted).)

4. The court of appeals had jurisdiction over Citizens United's appeal pursuant to 28 U.S.C. § 1291. See In Re Search Warrant for Secretarial Area-Gunn, 855 F.2d 569, 571-72 (8th Cir. 1988) (a district court's order denying a member of the public access to a judicial record is a final appealable order under 28 U.S.C. § 1291).

5. Prior to the issuance of its final opinion and judgment on December 20, 1996, the court of appeals issued a one-paragraph order, stating "for reasons that will be stated in an opinion to follow, we affirm the district court's denial of access to the videotape." (App. 20a-23a, United States v. McDougal, 92 F.3d 701 (8th Cir. 1996).)

6. Most circuits addressing this issue found a strong presumption in favor of access. See infra, pp. 17-19. The Fifth and Eighth Circuits view the presumption in favor of access as more easily overcome.

7. Even if this had been a legitimate basis for denying access to the videotape in early 1996 (and Petitioner contends that it was not), it no longer provides any justification for refusing to grant access, because President Clinton has been re-elected to a second term as President and is Constitutionally barred from seeking or holding any subsequent terms in that office. See U.S. Const. Amend. XXII § 1.

8. The Eight Circuit purports to follow the standard adopted by the Fifth Circuit in Belo Broadcasting Corp., v. Clark, 654 F.2d 423 (5th Cir. 1981), which held that an order denying access is subject to appellate review on an abuse of discretion standard, as opposed to de novo review (App. 14a). But the justification cited by the trial court in Belo Broadcasting (and affirmed by the Fifth Circuit) for denying the news media immediate access to audio recordings that had been admitted into evidence at trial was concern for the fair trial rights of an individual who had yet to be tried. See id. at 431. Here, in contrast, the justifications for denying access have nothing to do with defendants' rights to a fair trial; rather, a principal justification is the Government's purported interest in avoiding criticism of an incumbent President.

9. The trial court concluded early on that President Clinton's testimony would not implicate national security secrets because it "concerns events prior to his presidency." (App. 41a.) In addition, the court made no finding (nor has any party suggested) that releasing the deposition of the President's testimony would in any way harm or invade the privacy rights of innocent third persons. Finally, the trial court expressly rejected the contention that releasing the videotape would prejudice the right of any of the defendants, stating:

The Court has also considered defendants' argument that release of the videotape would deny them a fair trial. Defendant Tucker is facing a second indictment which has not yet gone to trial. The Court, however, is of the opinion that release of the videotape would have little impact on Tucker's second trial and that this factor does not weigh heavily in favor of not releasing the videotape.

10. In Guzzino, supra, there was no contention that release of the tapes would violate the privacy rights of innocent third parties or harm national security.

11. Citizens United has included this issue in its petition for writ of certiorari to fully preserve its appellate rights with respect to this issue. See also Rule 24.1(a), Rules of the United States Supreme Court.